{ "id": 8526569, "name": "STATE OF NORTH CAROLINA v. CHONG SUN FRANCE, Defendant", "name_abbreviation": "State v. France", "decision_date": "1989-06-06", "docket_number": "No. 884SC818", "first_page": "72", "last_page": "79", "citations": [ { "type": "official", "cite": "94 N.C. App. 72" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "340 S.E. 2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4700273 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0168-01" ] }, { "cite": "308 S.E. 2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 512", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4765436 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0512-01" ] }, { "cite": "309 S.E. 2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "309 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763094 ], "year": 1983, "pin_cites": [ { "page": "775" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0771-01" ] }, { "cite": "265 S.E. 2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "296 S.E. 2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "340 S.E. 2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720164 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0724-01" ] }, { "cite": "343 S.E. 2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "889" } ], "opinion_index": 0 }, { "cite": "317 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4777958 ], "year": 1986, "pin_cites": [ { "page": "93-94" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0087-01" ] }, { "cite": "340 S.E. 2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "357" } ], "opinion_index": 0 }, { "cite": "315 N.C. 762", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714140 ], "year": 1986, "pin_cites": [ { "page": "772" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0762-01" ] } ], "analysis": { "cardinality": 709, "char_count": 15904, "ocr_confidence": 0.772, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.34063858549282217 }, "sha256": "a7d33ce303873d97ae2c1051b21a3c7f60da8fea1d72b44ba49f6868a9cb353e", "simhash": "1:92a78167516f1eca", "word_count": 2647 }, "last_updated": "2023-07-14T20:07:12.068465+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge WELLS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHONG SUN FRANCE, Defendant" ], "opinions": [ { "text": "LEWIS, Judge.\nDefendant brings forward four assignments of error. First, she contends the trial court erred in allowing a police detective to testify regarding defendant\u2019s statements recorded by a television news crew. Second, defendant assigns error to the denial of her motion to dismiss the charges. Finally, defendant assigns error to the trial court allowing a doctor to answer two questions regarding the cause of death. We have reviewed defendant\u2019s assignments of error and conclude she received a fair trial, free from prejudicial error.\nThe State\u2019s evidence showed that upon arrival at defendant\u2019s motel apartment around 3:25 a.m. on 28 May 1987, Officer Fisher of the Jacksonville Police Department found the body of defendant\u2019s two and one-half year old son, Moses, lying on the bed. Officer Fisher and Sergeant Cobun testified that the television set was on the dresser and pieces of glass from a mirror were in the carpet and in a bag in the kitchen. Defendant told police officers that she fed Moses and his 15-month-old sister, Esther, around 6:30 p.m. on 27 May. After feeding the children, she went to work. She left the children alone in the bedroom and locked the bedroom door so the children would not go in the kitchen and hurt themselves. Only defendant and the two children lived in the apartment. Defendant said that when she returned home around 2:00 a.m. on 28 May, she found Esther asleep on the bed. The dresser and television set were overturned and Moses was lying on the floor partially inside the second dresser drawer with the television set on top of him. She picked up Moses and put him on the bed. Then she put the television set and dresser back in place and cleaned up the room. She waited a while before calling the police because she did not know what to do. Defendant testified in her own behalf to these same essential facts.\nThe State\u2019s evidence further showed that Moses died of asphyxiation as the result of compression of his abdomen and chest. Based on information that Moses ate dinner at 6:30 p.m., the doctor performing the autopsy, Dr. Gable, estimated that Moses died between 6:30 p.m. and 7:00 p.m. on 27 May. On cross-examination, Dr. Gable testified Moses may have died as late as 7:30 p.m. Dr. Gable testified that in his opinion, the television set and dresser falling on the child would have produced crushing-type injuries. Moses\u2019 body had no crushing-type injuries but only pressure-type injuries. There were no abnormalities of the bones. In Dr. Gable\u2019s opinion, Moses\u2019 death could have been caused by closing him up in a dresser drawer. Dr. Gable could not determine whether the pressure-type injuries occurred before or after Moses\u2019 death.\nBoth the State and defendant put on extensive evidence of reenactment experiments as to the possibility of a 28-pound child pulling over the television set and dresser. The State presented without objection evidence of reenactment tests performed by the Jacksonville City Engineer and police officers. The engineer testified that in his opinion a child of Moses\u2019 weight and age could not have pulled over the dresser with the television set sitting on it. Defendant\u2019s expert engineer testified without objection that in his reenactment test a child of similar weight and age standing on a chair in front of the dresser did move the television set across the top of the dresser.\nThe evidence showed that Moses was two years, five months old at his death. He weighed 28 pounds and was 38 inches (three feet two inches) tall. The dresser was 33 V2 inches (two feet nine and one-half inches) in height, 19 inches (one foot seven inches) deep, and weighed 99 pounds. With the television set on it, the dresser and the television set weighed 152 pounds. The top of the second dresser drawer was 27% inches (two feet three and three-fourths inches) from the floor.\nThe State\u2019s theory of the case is that Moses died from asphyxiation after defendant put Moses in one of the dresser drawers and closed it. Further, she may have placed the television set on Moses\u2019 chest and abdomen after Moses was dead. Defendant\u2019s theory is that Moses climbed into the second dresser drawer and caused the television set and dresser to fall over and pin him underneath.\nDefendant first assigns error to certain testimony of Detective Shingleton. After defendant\u2019s arrest, a local television station recorded defendant\u2019s statements to the press while she was in custody. Concluding that the prejudicial effect of a kicking episode on the tape would outweigh its probative value, the trial court granted defendant\u2019s motion in limine to prohibit showing the videotape to the jury. However, the court allowed Detective Shingleton to testify that defendant made the following statements which were recorded by the television crew: \u201cI did it. I did it. Okay, you stupid idiot. He thinks I did it, hunh?\u201d and \u201cYou guys are sick. Why don\u2019t you get out of here? Can you kill your son, hunh? Can you kill your son? I\u2019m crazy. You know I killed my son. I\u2019m crazy.\u201d Detective Shingleton testified defendant made these statements as she was being transported from the police station to the county jail after her arrest'. She was under arrest and in custody but the statements were made without questioning or interrogation from any law enforcement personnel. On cross-examination, the detective described defendant as \u201cangry,\u201d \u201cmad,\u201d and \u201ccrying without tears\u201d when she made the statements.\nDefendant contends the evidence should have been excluded under G.S..8C-1, Rule 403 as it caused \u201cunfair prejudice.\u201d We disagree. \u201cAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d G.S. 8C-1, Rule 403. \u201c \u2018Unfair prejudice,\u2019 as used in Rule 403, means \u2018an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one.\u2019 \u201d State v. DeLeonardo, 315 N.C. 762, 772, 340 S.E. 2d 350, 357 (1986), quoting Commentary, G.S. 8C-1, Rule 403 (Cum. Supp. 1985). \u201cRule 403 calls for a balancing of the proffered evidence\u2019s probative value against its prejudicial effect. Necessarily, evidence which is probative in the State\u2019s case will have a prejudicial effect on the defendant; the question, then, is one of degree.\u201d State v. Mercer, 317 N.C. 87, 93-94, 343 S.E. 2d 885, 889 (1986). Whether to exclude evidence under Rule 403 is within the sound discretion of the trial court. State v. Mason, 315 N.C. 724, 340 S.E. 2d 430 (1986). In this case, the evidence of defendant\u2019s statements on the videotape are prejudicial to defendant\u2019s case; the detective testified that defendant said she killed her son. However, we cannot say the evidence is unfairly prejudicial. Officer Fisher had previously testified without objection that defendant stated \u201cIt\u2019s my fault. I killed him.\u201d Officer Fisher described defendant as \u201cvery hysterical and hateful\u201d in her dealings with the police officers at the scene. There was also testimony from the State\u2019s other witnesses to the effect that Moses\u2019 death was caused by putting him in the dresser drawer and closing it. The trial court did not err in admitting the detective\u2019s testimony. This assignment of error is overruled.\nDefendant\u2019s second assignment of error is to the denial of her motion to dismiss at the close of all the evidence. Defendant contends the evidence presented at trial was insufficient to support verdicts of guilty of second degree murder and felonious child abuse. We disagree. A motion to dismiss is properly denied if there is substantial evidence of each element of the crime charged or of a lesser included offense and substantial evidence that defendant committed the offense. State v. Earnhardt, 307 N.C. 62, 296 S.E. 2d 649 (1982). \u201cSubstantial evidence is \u2018such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d Id. at 66, 196 S.E. 2d at 652, quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E. 2d 164, 169 (1980). In ruling on this motion, the trial court must consider all the evidence in the light most favorable to the State and give the State every reasonable inference which can be drawn from the evidence. Id. The court must consider all evidence which is admitted which is favorable to the State, but inconsistencies in the evidence are not sufficient to warrant dismissal as they are for the jury to resolve. Id. The test in ruling on a motion to dismiss is the same whether the evidence is direct, circumstantial or both. Id.\n\u201cSecond-degree murder is the unlawful killing of a human being with malice, but without premeditation and deliberation.\u201d State v. Robbins, 309 N.C. 771, 775, 309 S.E. 2d 188, 190 (1983). Intent to kill is not a necessary element of second degree murder, but there must be some intentional act which proximately causes death and is sufficient to show malice. State v. Lang, 309 N.C. 512, 308 S.E. 2d 317 (1983).\nThe felony child abuse statute relevant to this case provides:\nA parent or any other person providing care to or supervision of a child less than 16 years of age who intentionally inflicts any serious physical injury upon or to the child or who intentionally commits an assault upon the child which results in any serious physical injury to the child is guilty of a Class H felony.\nG.S. 14-318.4(a). In State v. Campbell, 316 N.C. 168, 340 S.E. 2d 474 (1986), our Supreme Court held the circumstantial evidence was sufficient to survive the defendant\u2019s motion to dismiss. The evidence showed an uninjured two-year-old child was left in the sole custody and control of the defendant. A social worker testified the child was unable to put her hands more than two inches below the top edge of the bathtub. The child suffered extensive first, second and third degree burns on her hands with clear lines of demarcation from healthy skin at the wrist. A doctor testified that, although he could only guess at the length of time necessary to cause these particular burns, the child\u2019s hands would have had to have been in the water for ten to fifteen seconds to cause the type of burns the child suffered if the water was not boiling hot. The social worker also testified to bruises on the child which would support a reasonable inference the defendant grasped the child to hold her hands under the water. Id. The issue is not whether the State proved the defendant intended to cause the child serious injury but whether the State showed the defendant intentionally inflicted injury which proves to be serious. Id.\nWe hold the evidence in this case was sufficient to survive defendant\u2019s motion to dismiss. The evidence showed that defendant was Moses\u2019 parent and that the child was under age 16. The evidence also showed that defendant locked the children in the apartment and unlocked the door when she returned from work. The State presented medical and scientific evidence which tended to show Moses could not have died in the manner described by defendant. The State\u2019s witness, Dr. Gable, testified Moses died from asphyxiation and not from the crushing injuries he would expect if the television set and dresser had fallen on the child as described by defendant. Dr. Gable also testified that Moses\u2019 asphyxiation could have been caused by putting Moses in the dresser drawer and closing it. Viewing the evidence in the light most favorable to the State and giving the State the benefit of every reasonable inference, and despite contrary evidence presented by defendant, the evidence of second degree murder and felony child abuse is sufficient to survive defendant\u2019s motion to dismiss.\nFinally, defendant assigns error to the testimony of Dr. Gable, the physician performing the autopsy. Defendant objected to the following questions: \u201cCould the death of this child have been caused by putting the child in a drawer of the chest of drawers and pushing it shut?\u201d and \u201c. . . do you have an opinion as to whether the death of this child was caused by having . . . the t.v. and dresser falling over on him?\u201d Defendant contends the expert was allowed to render an opinion based on facts not in evidence or within his personal knowledge. We find no error. Our Rules of Evidence provide that \u201c[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing.\u201d G.S. 8C-1, Rule 703. The facts upon which Dr. Gable based his opinion were both within his personal knowledge and admitted into evidence. Dr. Gable testified to the condition of the body during the autopsy. He also testified that he personally observed the television set, the dresser and reenactment tests performed by the Jacksonville city engineer and the police department. Dr. Gable gave his opinion as to whether Moses\u2019 particular head and back injuries could have been caused if the television set and dresser had fallen on the child. We believe Dr. Gable had sufficient personal knowledge for his opinion regarding the cause of death.\nDefendant received a fair trial, free from prejudicial error.\nNo error.\nChief Judge HEDRICK and Judge WELLS concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Philip A. Telfer, for the State.", "Edward G. Bailey for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHONG SUN FRANCE, Defendant\nNo. 884SC818\n(Filed 6 June 1989)\n1. Criminal Law \u00a7 75.23 \u2014 statements to television crew \u2014 admission not unfairly prejudicial\nEvidence of defendant\u2019s statements to a television crew as she was being transported from the police station to the county jail after her arrest, including statements that she had killed her son and was crazy, was not unfairly prejudicial so as to require its exclusion under N.C.G.S. \u00a7 8C-1, Rule 403 where an officer had testified previously that defendant stated that she \u201ckilled him,\u201d the officer described defendant as \u201cvery hysterical and hateful\u201d in her dealings with police officers at the scene, and other witnesses gave testimony to the effect that the child\u2019s death was caused by putting him in a dresser drawer and closing it.\n2. Homicide \u00a7 21.7\u2014 second degree murder \u2014child abuse \u2014sufficiency of evidence\nThe State\u2019s evidence was sufficient for the jury in a prosecution of defendant for second degree murder and felonious child abuse of her son where it tended to show that defendant locked the twenty-nine-month-old victim and his fifteen-month-old sister in the bedroom of her apartment when she went to work; the son was dead when she returned from work; medical and scientific evidence indicated that the child died from asphyxiation rather than from crushing injuries which would be expected if a television set and dresser had fallen on the child as described by defendant; and the child\u2019s asphyxiation could have been caused by putting him in a dresser drawer and closing it.\n3. Homicide \u00a7 15.5 \u2014 cause of death \u2014 expert testimony \u2014 personal knowledge\nA physician had sufficient personal knowledge to state his opinion as to whether the death of a child could have been caused by a television set and a dresser falling on him where the physician conducted the autopsy on the child and personally observed the television set, the dresser, and reenactment tests performed by the police department and a city engineer. N.C.G.S. \u00a7 8C-1, Rule 703.\nAPPEAL by defendant from Reid (David E., Jr.), Judge. Judgment entered 21 December 1987 in Superior Court, ONSLOW County. Heard in the Court of Appeals 22 February 1989.\nDefendant was found guilty by a jury of second degree murder and felonious child abuse. The trial court arrested judgment in the felonious child abuse case and sentenced defendant to twenty years for the second degree murder conviction. Defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Philip A. Telfer, for the State.\nEdward G. Bailey for defendant-appellant." }, "file_name": "0072-01", "first_page_order": 102, "last_page_order": 109 }